Partly allowed

G.Balaraman v. G.Kupuswamy

Madras HC18 Jan 2017CS/267/2011

Case brief

AI extract

What is this about?

This judgment allows a suit for partition of an ancestral property. The court held that the plaintiff, as a legal heir, was entitled to a half share. The Will propounded by the defendant was negatived due to the dismissal of a related testamentary suit, leaving the parties as co-heirs. The preliminary decree divides the property into two equal shares.

What did the court decide?

A preliminary decree dividing the suit property into two equal shares, one allotted to the plaintiff; appointment of an advocate commissioner for final division and possession.

G.Balaraman Vs G.Kupuswamy — Partition | Madras HC (2017)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

RESERVED ON : 04.01.2017

¶3

PRONOUNCED ON 18..01..2017

¶4

CORAM

¶5

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR C.S.NO.267 OF 2011 G.Balaraman .. Plaintiff Versus G.Kuppuswamy .. Defendant PRAYER : Plaint filed under Order VILL Rule 1 of C.P.C, 1908 read with Order IV Rule 1 of Original Side Rules praying for the following judgment and decree against the defendant. (i) Declare the plaintiff have the right to ½ share in the schedule mentioned property as preliminary decree and (ii) to appoint an advocate commissioner to divide the schedule mentioned property and handover the possession of the ½ share of suit schedule property to the plaintiff without any encumbrances as final decree, (iii) Directing the defendants to pay the cost of the proceedings.” For Plaintiff : Mr. V.Lakshmi Narayanan For Defendant : H.Manojin

¶6

https://hcservices.ecourts.gov.in/hcservices/

¶7

J U D G M E N T

¶8

The suit is filed by the plaintiff praying for ½ share in

¶9

the schedule mentioned property by appointing Advocate Commissioner.

¶10

The brief facts of the case of the plaintiff is as follows:

¶11

The suit property originally belonged to one Aburooppammal, who is the mother of plaintiff and the defendant herein. The said Aburooppammal passed away on 28.10.1993, leaving her husband, Gopal Naicker and the plaintiff and the defendant. The said Gopal Naicker also died on 09.5.1996. After his death, the plaintiff and the defendant are in joint possession and enjoyment of the suit property. According to the plaintiff, he is entitled to half share in the suit property. It is stated that the Testamentary Suit filed by the defendant praying larger share by virtue of a Will was also dismissed by this Court. Hence the above suit.

¶12

The defendant had filed a written statement contending that the suit property consists of building and even during the life time of his parents, he was enjoying the suit property. As per the Will executed by his mother, the suit

¶13

https://hcservices.ecourts.gov.in/hcservices/

¶14

property has been partitioned and the parties to the suit have been enjoying the property in such a manner. It is contended by the defendant that there is no cause of action. Hence, he prayed for dismissal of the suit.

¶15

Based on the above pleadings, on 12.10.2015, this

¶16

Court framed the following issues:

¶17

plaintiff and the defendant and perused the records.

¶18

Issue Nos: 1 to 6

¶19

Sale Deed between City improvement Trust and Plaintiff's mother and Ex.P2, Judgment in TOS.28 of 2002 were filed. No oral and documentary evidence adduced on the side of the defendant.

¶20

https://hcservices.ecourts.gov.in/hcservices/

¶21

P.W.1 in his evidence has clearly stated about the

¶22

nature of the property, as well as his entitlement of half share in the suit property. Ex.P1 is a copy of the sale deed executed between City Improvement Trust and the plaintiff's mother. Ex.P2 is the judgment in TOS.No.28 of 2011. On a careful perusal of Ex.P2, judgment, it appears that the plaintiff and the defendant's mother Aburoopammal said to have left the Will and appointed one T.Narayanan, as executor. The said Narayanan, who propounded the Will, filed Testamentary Suit being TOS.No.28 of 2002. After due contest, the above suit was dismissed. Therefore, it is clear that Will propounded by the so called Executor has not been proved in the manner known to law. In view of the dismissal of the suit, now the Will has been negatived by this Court.

¶23

Admittedly, the suit properties belonged to one

¶24

Aburooppammal. The plaintiff and the defendant are the legal heirs of the said Aburooppammal. Therefore, they are, certainly, entitled to ½ share. P.W.1's evidence as well as

¶25

the documents filed by the plaintiff, clearly proved his claim over the suit property. Hence, the suit property has to be divided into two equal share.

¶26

https://hcservices.ecourts.gov.in/hcservices/

¶27

Accordingly, the preliminary decree is passed dividing the suit property into two equal shares and to allot one such share to the plaintiff. Considering the nature of the suit and the relationship between the parties, there shall be no order as to costs.

¶28

sd/.N.S.K.J
18.01.2017
//Certified to be a true copy//
Dated this the day of 2017.
P.M./16.06.2017 COURT OFFICER
From 25.09.2008 the Registry is issuing certified copies of
the Order/Judgment Decree in this format.

¶29

https://hcservices.ecourts.gov.in/hcservices/

G.Balaraman v. G.Kupuswamy

Case brief

What is this about?

What did the court decide?

G.Balaraman v. G.Kupuswamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Coram

Case details

Similar cases

Mr.N.Shajahan Vs Mrs.K.Havva Beevi

Sikora Salvador International Vs M/S.Nanchil Latex Private Ltd.

Mrs.Amutha and 2 Others Vs C.Mahizhan and Another

M/S.Khivraj Motors Pvt. Ltd. Vs Dr. Kayal Senthilnathan

Real Image Media Technologies Vs R.Karthikeyan

K.Chandrasekaran Vs C.Shantha